IN THE SUPREME COURT OF THE STATE OF WASHINGTON

) 

In the Matter of the Recall of ) 

) No. 98897-8 

) 

) 

) 

Jenny Durkan, ) En Banc

City of Seattle Mayor ) 

) 

) 

____________________________________) Filed: _______________

YU, J.— This case involves cross appeals regarding a petition to 

recall Seattle Mayor Jenny Durkan based on events that occurred at protests 

following the killing of George Floyd. The recall petition alleges that Mayor 

Durkan failed to adequately control the Seattle Police Department’s (SPD) 

response to the protests, allowing the police to use unnecessary force and 

causing significant harm to nonviolent protesters, local residents, media 

December 10, 2020

FILE 

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON 

DECEMBER 10, 2020 

THIS OPINION WAS FILED 

FOR RECORD AT 8 A.M. ON

DECEMBER 10, 2020

SUSAN L. CARLSON 

SUPREME COURT CLERK 
In re Recall of Jenny Durkan, No. 98897-8 

2 

representatives, and medical aid workers. Of the seven recall charges, six 

were dismissed by the trial court and one was allowed to move forward. 

Mayor Durkan appeals the charge that was allowed to move forward, and the 

recall petitioners appeal the dismissal of two other charges. On October 8, 

2020, we issued an order affirming the trial court’s dismissal of two recall 

charges and reversing the finding that one charge was sufficient for recall. 

We now explain that order. 

BACKGROUND

On May 25, 2020, George Floyd was killed by police in Minneapolis, 

Minnesota. Widespread protests against police brutality swiftly followed. 

Protests began in Seattle on May 29 and continued regularly thereafter. The 

protests were largely peaceful, but on multiple occasions, there were 

conflicts between the crowds and SPD. In response, SPD used “less lethal” 

methods of crowd control, including tear gas (also known as CS 

(chlorobenzylidenemalononitrile) gas), pepper spray (also known as OC 

(oleoresin capsicum) gas), and flash-bang grenades, multiple times 

beginning in late May.

Numerous protesters were seriously injured, and tear gas seeped into 

the homes of local residents, causing ill effects to both their health and their 
In re Recall of Jenny Durkan, No. 98897-8 

3 

property, and forcing some to evacuate the area entirely. SPD officers also 

suffered injuries. The parties dispute who was responsible for initiating and 

escalating these conflicts. The recall petitioners contend that SPD’s 

response to the conflicts was both unreasonable and unlawful, and that 

Mayor Durkan should be recalled for her failure to control their actions.

A. Factual allegations regarding SPD’s use of force

The recall petitioners’ case focuses primarily on SPD’s use of 

“chemical agents,” namely pepper spray and tear gas, particularly in light of 

the heightened health risks they pose during the COVID-19 pandemic. 2 

Clerk’s Papers (CP) at 303. In addition, they allege that SPD prevented 

medical aid workers from attending to the injured and prevented members of 

the media from doing their jobs.

The use of pepper spray is governed by specific guidelines contained 

in the SPD manual. The manual provides that pepper spray may be used 

“Only When Such Force is Objectively Reasonable, Necessary, and 

Proportional,” and cannot be used without a prior verbal warning, unless 

“giving the warning would compromise the safety of the officer or others.” 

Id. at 202-03. There is no dispute that SPD used pepper spray on numerous 

occasions to disperse and control the crowds at the protests. The recall 
In re Recall of Jenny Durkan, No. 98897-8 

4 

petitioners contend that SPD did not follow its own guidelines when doing 

so, using pepper spray when it was not necessary and without prior verbal 

warnings. They also contend that “pepper spray presents almost the same 

danger profile with regard to the pandemic” as tear gas “by making the 

respiratory tract more susceptible to infection, exacerbating existing 

inflammation, and inducing coughing.” Resp. Br. & Opening Br. of CrossAppellant at 7 n.8; 1 CP at 55.

On May 31, two days into the protests, SPD requested special 

authorization from Seattle Police Chief Carmen Best “to enable patrol to use 

CS Gas in the necessary event of crowd [dispersal].” 1 CP at 176. SPD 

asked to be allowed to use tear gas, which is not specifically referenced in 

the SPD manual and is not generally used by patrol officers (as opposed to 

SWAT (special weapons and tactics) teams), according to the same 

guidelines that apply to the use of pepper spray. The stated reason for SPD’s 

request was that on May 30, individuals “who appeared to be unaffiliated 

with the peaceful march, assaulted officers, set fire to police and citizen 

vehicles, smashed windows of and looted numerous businesses throughout 

the downtown core, and otherwise caused extensive mayhem and property 

damage.” Id. at 69. Police efforts to control the situation had “largely 

depleted” their supply of pepper spray and “blast balls,” raising a concern 
In re Recall of Jenny Durkan, No. 98897-8 

5 

that if such events were to recur, they would have no effective means of 

responding. Id. SPD requested “that the authorization and exemption stated 

here remain in place for 14 days or until Patrol determines that it has 

sufficient standard issue less-lethal devices on hand.” Id. at 70. Chief Best 

granted the request. SPD used tear gas on the crowds on June 1 and June 2, 

with the authorization of the “IC” (incident command). 3 CP at 411, 403.

Several key events took place on June 5. SPD advised Chief Best that 

it “has received what it believes to be sufficient additional supply of 

standard issue crowd management tools,” such that the special authorization 

for the use of tear gas was no longer necessary. 1 CP at 71. Chief Best 

agreed to rescind the authorization, and SPD issued 

a departmental directive prohibiting the use of CS gas except 

the following circumstances: “Where SWAT is on-scene, 

consistent with Manual Section 14.090(4), SWAT will follow 

all department policies and procedures regarding the use of 

specialty tools, to include the use of CS gas, in life-safety 

circumstances and consistent with training.”

Id. at 177 (emphasis omitted). The directive also restricted SWAT’s 

authority to use tear gas by requiring that before doing so, “until further 

notice, any deployment must be approved by the Chief or the Chief’s 

designee.” Id. (emphasis omitted). The directive was to remain in place for 

at least 30 days. 3 CP at 445.
In re Recall of Jenny Durkan, No. 98897-8 

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Also on June 5, Mayor Durkan sought the advice of numerous entities 

concerning SPD’s crowd control methods. The entities included the Seattle 

Office of Police Accountability, the Seattle Office of Inspector General, the 

court appointed Federal Monitor, the Seattle Community Police 

Commission, and the Department of Justice. The Mayor specifically 

requested a determination as to “what innovative techniques, or combination 

of techniques, can provide a greater ability to de-escalate situations that 

occur with mass protests, so that the use of force can be greatly minimized 

and avoided” and “a recommendation about the use of CS gas in any 

situation.” Id. at 444.

That same day, the Seattle Office of the Inspector General, the Seattle 

Community Police Commission, and the Seattle Office of Police 

Accountability sent a joint initial response, noting that while the SWAT 

manual contains guidance “for specialty unit use of tear gas,” the 

department-wide SPD manual itself “does not reference the use of CS gas 

nor the conditions under which it can be used for general crowd control.” 

Id. at 469-70. The response also expressed concern that the use of tear gas 

for crowd control “was not approved by the federal court in the context of 

the Consent Decree” (discussed further below), “is not consistent with how 

the City envisions policing its communities,” and has the “potential to 
In re Recall of Jenny Durkan, No. 98897-8 

7 

increase spread and vulnerability to COVID-19.” Id. at 470. The joint 

response therefore requested that SPD “cease the use of CS gas in response 

to First Amendment activity, until such time as any appropriate use can be 

vetted by oversight entities and incorporated into a written SPD policy.” Id.

at 469.

Two days later, on the evening of June 7, conflicts escalated again, 

and, believing that the necessary “life-safety circumstances” were presented, 

SPD requested Chief Best’s authorization for SWAT to use tear gas shortly 

after midnight on June 8, which she granted. 1 CP at 179.

There does not appear to be any evidence that tear gas was used after 

June 8. However, the recall petitioners assert that the inappropriate use of 

pepper spray has continued; SPD is still attacking protesters “without 

motivation, provocation, or warning”; and “violence still breaks out 

regularly between SPD and Seattle citizens.” Resp. Br. and Opening Br. of 

Cross-Appellant at 10, 9. Chief Best has since resigned and been replaced 

by Interim Chief Adrian Diaz, the former deputy chief.

B. Relevant federal cases

In addition to this recall case, there are two ongoing cases in federal 

court that are relevant to our decision here.
In re Recall of Jenny Durkan, No. 98897-8 

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1. “Consent Decree” case

In 2011, the Department of Justice (DOJ) “investigated SPD for a 

potential pattern or practice of unconstitutional policing and excessive 

force.” United States v. City of Seattle, 2020 WL 4275515, at *1. On July 

27, 2012, the United States filed a complaint in the federal district court for 

the Western District of Washington.

1

 On the same day, the federal 

government and the City of Seattle filed a proposed “Settlement Agreement 

and Memorandum of Understanding,” commonly known as the Consent 

Decree, “with the goal of ensuring that police services are delivered to the 

people of Seattle in a manner that fully complies with the Constitution and 

laws of the United States, effectively ensures public and officer safety, and 

promotes public confidence in” SPD. 3 CP at 522.2

The Consent Decree includes numerous provisions for limitations and 

oversight of SPD’s policies and practices, including the use of force 

1 The complaint is available on the DOJ’s website at 

https://www.justice.gov/sites/default/files/crt/legacy/2012/07/31/spd_complaint_7-27-

12.pdf [http://perma.cc/JD8H-53FB].

2

 These quotes are from the original Consent Decree as proposed by the parties, 

which is in the record and may also be found on SPD’s website at http://www.seattle.gov/ 

Documents/Departments/Police/Compliance/Consent_Decree.pdf 

[https://perma.cc/LP3T-UKBA]. The Consent Decree that was ultimately approved by 

the federal district court was modified, but the modifications do not appear to be material 

here. They may be found on the Department of Justice’s website at 

https://www.justice.gov/sites/default/files/crt/legacy/2012/11/28 

/spd_orderapprovingsettlement_9-21-12.pdf [https://perma.cc/MA5L-LDCN]. 
In re Recall of Jenny Durkan, No. 98897-8 

9 

generally and the use of pepper spray specifically. Id. at 537-38. The 

Consent Decree mandates that “SPD will submit the policies, procedures, 

training curricula, and training manuals required to be written, revised, or 

maintained by the Settlement Agreement to the Monitor and DOJ for review 

and comment prior to publication and implementation.” Id. at 572. Before 

the Consent Decree may be terminated by the court, the City of Seattle must 

reach “full and effective compliance” with its requirements and then remain 

in compliance for at least two years. Id. at 591.

In January 2018, the federal district court granted the City’s motion to 

declare that it had achieved full and effective compliance, although it 

cautioned that maintaining compliance for at least two years may be “the 

most difficult portion of the Consent Decree to fulfill.” United States v. City 

of Seattle, 2018 WL 348372, at *6. Less than one year later, in December 

2018, the court ordered the parties to show cause as to whether the City “has 

failed to maintain full and effective compliance with the Consent Decree.” 

United States v. City of Seattle, 2018 WL 6304761, at *1. In May 2019, 

after hearing from the parties, the court found that the city had failed to 

comply with the Consent Decree’s accountability requirements and directed 

that “the City will need to come back into full and effective [compliance] 

with the Consent Decree, and then maintain that compliance for two years. 
In re Recall of Jenny Durkan, No. 98897-8 

10 

United States v. City of Seattle, 2019 WL 2191871, at *1. In all other areas, 

the two-year clock continued to run. Id. The Consent Decree remains in 

effect to this day.

2. Federal tort case

In early June 2020, Black Lives Matter Seattle-King County, along 

with several individual plaintiffs, sued the City of Seattle in the federal 

district court for the Western District of Washington, alleging SPD’s uses of 

force at the protests violated their First and Fourth Amendment rights and 

sought a temporary restraining order (TRO). Black Lives Matter SeattleKing County v. City of Seattle, 2020 WL 3128299, at *1 (W.D. Wash. June 

12, 2020). The district court found “that on some occasions the SPD has in 

fact used less-lethal weapons disproportionately and without provocation.” 

Id. at *2. On June 12, the court issued a TRO enjoining SPD “from 

employing chemical irritants or projectiles of any kind against persons 

peacefully engaging in protests or demonstrations” except where necessary 

“to protect against a specific imminent threat of physical harm to themselves 

or identifiable others or to respond to specific acts of violence or destruction 

of property.” Id. at *5. The TRO was later converted to a preliminary 
In re Recall of Jenny Durkan, No. 98897-8

11

injunction on stipulation of the parties. Benton v. City of Seattle, 2020 WL 

4584214, at *1 (W.D. Wash. Aug. 10, 2020).

C. Procedural history

On June 15, 2020, the recall petitioners “filed a statement of charges 

with the King County Elections Department seeking the recall of Mayor 

Durkan.” 1 CP at 1. The King County Prosecuting Attorney’s Office 

prepared the following ballot synopsis:

As alleged by King County voters Elliott Grace Harvey, Alan 

L. Meekins, Jr., Courtney Scott, Leah Solomon and Charlie 

Stone, shall Jenny Durkan be recalled from office for 

misfeasance, malfeasance, and violation of the oath of office, 

based on the following charges:

Mayor Durkan endangered the peace and safety of the 

community and violated her duties under state and local laws 

and her oath to uphold the federal and state constitutions when 

she:

(1) Issued a citywide curfew without sufficient notice for 

individuals to safely disperse;

(2) Failed to institute new policies and safety measures for the 

Seattle Police Department when using crowd control measures 

during a public health emergency;

(3) Failed to enforce police officer compliance with the Seattle 

Municipal Code and the Seattle Police Department Manual 

when the police attacked members of the press and street 

medics and failed to use appropriate de-escalation techniques;

(4) Failed to protect freedom of speech and the right to peaceful 

assembly;

(5) Wrongfully subjected bystanders to chemical weapons and 

crowd control measures;
In re Recall of Jenny Durkan, No. 98897-8

12

(6) Allowed police to leak false information to the media about 

fabricated crimes and threats;

(7) Issued an overbroad order prohibiting possession of certain 

items in areas of the city.

Id. at 2. The parties’ briefing refers to the recall charges by letter, rather 

than by number, consistent with the statement of charges that the recall 

petitioners filed with the elections department. To avoid confusion, we use 

the parties’ letter designations. The charges currently before this court are 

charge (2) (called Charge B in the briefing), charge (3) (called Charge C in 

the briefing), and charge (5) (called Charge E in the briefing).

After receiving the parties’ written submissions and holding a 

telephonic hearing, the trial court issued an order on July 10. Charges A and 

C-G were dismissed as insufficient. The trial court allowed Charge B to 

move forward but determined it was overbroad as currently written because 

“[a]ny alleged failure of Mayor Durkan to prohibit use of chemical crowd 

control agents by SPD based on the early conduct before she can be said to 

have been aware, are legally and factually insufficient.” 2 CP at 301. The 

court therefore narrowed Charge B to read,

Mayor Durkan endangered the peace and safety of the 

community and violated her duties under state and local laws 

and her oath to uphold the federal and state constitutions when 

she failed to institute new policies and safety measures for the 

Seattle Police Department after learning of the use of chemical 
In re Recall of Jenny Durkan, No. 98897-8 

13 

agents on peaceful protesters as a means of crowd control 

during a public health emergency.

Id. at 303.

Mayor Durkan timely moved for reconsideration regarding Charge B. 

The trial court requested a response. The recall petitioners filed a combined 

response and cross motion for reconsideration, attaching numerous new 

declarations. Mayor Durkan objected to the cross motion on the grounds 

that it was not timely filed. On July 29, the recall petitioners filed a motion 

to expedite the ruling, attaching several declarations that were filed in the 

federal tort case discussed above, which detailed events that occurred on 

July 25, to demonstrate the urgency of the matter.

On the same day that the motion to expedite was filed, July 29, the 

trial court issued an order denying Mayor Durkan’s motion for 

reconsideration and declining to consider the recall petitioners’ cross motion 

because it was “not noted for hearing.” 4 CP at 793 & n.i. The court 

indicated that it considered the declarations the recall petitioners had 

attached to their answer/cross motion, but not the declarations attached to 

the motion to expedite, because the court “reviewed anew the entire court 

record through the date designated for briefing on the motion, July 24, 

2020.” Id. at 790. Both parties filed notices of appeal. 
In re Recall of Jenny Durkan, No. 98897-8

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ANALYSIS

A. Background law governing recall elections

Washington voters have a constitutional right to recall any nonjudicial 

elected official who “has committed some act or acts of malfeasance or 

misfeasance while in office, or who has violated his [or her] oath of office.” 

CONST. art. I, § 33. The statutes governing recall proceedings are at RCW 

29A.56.110-.270. See CONST. art. I, § 34.

In the recall process, the court’s role is “to ensure that the recall 

process is not used to harass public officials by subjecting them to frivolous 

or unsubstantiated charges.” In re Recall of West, 155 Wn.2d 659, 662, 121 

P.3d 1190 (2005). It is up to the voters to determine whether the charges are 

true and, if so, whether they in fact justify recalling the official. Courts 

therefore take all factual allegations as true. In re Recall of Boldt, 187 

Wn.2d 542, 549, 386 P.3d 1104 (2017). We review the sufficiency of a 

recall petition de novo. Id.

A charge is factually sufficient where the alleged facts, taken as a 

whole, “‘identify to the electors and to the official being recalled acts or 

failure to act which without justification would constitute a prima facie 

showing of misfeasance, malfeasance, or a violation of the oath of office.’” 
In re Recall of Jenny Durkan, No. 98897-8 

15 

Id. at 548 (quoting Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 

(1984)). A charge “is legally sufficient if it ‘state[s] with specificity 

substantial conduct clearly amounting to misfeasance, malfeasance or 

violation of the oath of office.’” Id. at 549 (alteration in original) (quoting 

Chandler, 103 Wn.2d at 274). “Misfeasance,” “malfeasance,” and 

“violation of the oath of office” are statutorily defined:

(1) “Misfeasance” or “malfeasance” in office means any

wrongful conduct that affects, interrupts, or interferes with the 

performance of official duty;

(a) Additionally, “misfeasance” in office means the

performance of a duty in an improper manner; and

(b) Additionally, “malfeasance” in office means the

commission of an unlawful act;

(2) “Violation of the oath of office” means the neglect or

knowing failure by an elective public officer to perform 

faithfully a duty imposed by law.

RCW 29A.56.110.

There are two limitations on recall that are particularly relevant to this 

case. First, an elected official is not subject to recall “for the act of a 

subordinate done without the official’s knowledge or direction.” In re 

Recall of Morrisette, 110 Wn.2d 933, 936, 756 P.2d 1318 (1988). Second, 

“[a]n official may be recalled for execution of discretionary acts only if the 

execution of that discretion is done ‘in a manifestly unreasonable manner,’” 
In re Recall of Jenny Durkan, No. 98897-8 

16 

which “may be shown by demonstrating discretion was exercised for 

untenable grounds or for untenable reasons.” In re Recall of Inslee, 194 

Wn.2d 563, 572, 451 P.3d 305 (2019) (internal quotation marks omitted) 

(quoting In re Recall of Bolt, 177 Wn.2d 168, 174, 298 P.3d 710 (2013)). 

B. The charges before the court, though by no means frivolous, are

insufficient to support a recall election

There are three different charges before us in this case. Mayor

Durkan has appealed the trial court’s decision to allow Charge B to go 

forward. Charge B is as follows:

Mayor Durkan endangered the peace and safety of the 

community and violated her duties under state and local laws 

and her oath to uphold the federal and state constitutions when 

she failed to institute new policies and safety measures for the 

Seattle Police Department after learning of the use of chemical 

agents on peaceful protesters as a means of crowd control 

during a public health emergency.

2 CP at 303.

The recall petitioners cross appeal the dismissal of Charge C, which 

states that Mayor Durkan

[f]ailed to enforce police officer compliance with the Seattle

Municipal Code and the Seattle Police Department Manual

when the police attacked members of the press and street

medics and failed to use appropriate de-escalation techniques.
In re Recall of Jenny Durkan, No. 98897-8

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1 CP at 2. They also cross appeal the dismissal of Charge E, which 

states that Mayor Durkan

[w]rongfully subjected bystanders to chemical weapons and crowd 

control measures.

Id.

Although three different charges are before us, there is one essential 

dispute between the parties that underlies all three of them. The recall 

petitioners contend that SPD violated their own policies and individuals’ 

constitutional rights, causing injuries and endangering the community, and 

that once Mayor Durkan became aware of these violations, she did not take 

further steps to intervene and take control of the situation. This failure to 

act, the recall petitioners contend, was misfeasance and a violation of her 

oath of office because Mayor Durkan (1) has the duties to “see that the laws 

in the City are enforced” and to “maintain peace and order in the City,” 

SEATTLE CITY CHARTER, art. V, § 2, (2) has ultimate authority over SPD, 

including the authority to “assume command of the whole or any part of the 

police force of the City” in a time of emergency, id., and (3) swore in her 

oath of office to “support the Constitution of the United States, the 

Constitution of the State of Washington, and the Charter and Ordinances of 

The City of Seattle.” 1 CP at 30.
In re Recall of Jenny Durkan, No. 98897-8

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Mayor Durkan contends that carrying out her duties to enforce the 

law, maintain peace and order, and support the federal and state constitutions 

and local laws necessarily requires the use of discretion. She argues that the 

recall petitioners do not show that her failure to take any particular action 

was manifestly unreasonable. Instead, Mayor Durkan contends, the recall 

petitioners simply disagree with how she handled an evolving situation 

during an unprecedented public health emergency and widespread civil 

unrest, and that is not a permissible basis for recall.

The allegations in this case are deeply troubling and certainly cannot 

be considered frivolous. Because we treat the factual allegations in recall 

petitions as true, we must assume that both protesters and local residents 

who were minding their own business in their own homes suffered serious 

injuries and increased risk of exposure to COVID-19 because SPD 

responded to the protesters’ exercise of their First Amendment rights with 

violence. If the allegations are true, those responsible must be held 

accountable. However, the petitioners do not show that our precedent allows 

Mayor Durkan to be held accountable through a recall election on the 

charges presented.

1. The recall petitioners do not show that Mayor Durkan’s failure 

to take any particular action was manifestly unreasonable
In re Recall of Jenny Durkan, No. 98897-8

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In contending that Mayor Durkan’s failure to take further actions to 

stop SPD’s violations and protect the community, the recall petitioners 

suggest a number of actions that she could have taken. While most of the 

actions suggested are indisputably within Mayor Durkan’s authority, the 

recall petitioners do not show that declining to take those actions was a 

manifestly unreasonable decision.

First, “[t]he Mayor could lawfully — as she even agrees — have 

taken charge of the police department because of the emergency that she 

herself declared” or “she could have lawfully dismissed the Chief of Police 

and, with the help of the City Council, replaced her with someone more 

respectful of the constitutional rights and the health of protesters.” Resp. Br. 

& Opening Br. of Cross-Appellant at 21 (citing SEATTLE CITY CHARTER, art. 

V, § 2). The recall petitioners contend that “after it became abundantly clear 

that the use of chemical gasses during a respiratory pandemic was 

unreasonably dangerous,” but SPD continued to use them and Chief Best did 

not put a stop to it, Mayor Durkan’s failure to remove Chief Best was 

manifestly unreasonable. Reply Br. of Cross-Appellant at 4. However, 

Mayor Durkan, while a very experienced attorney, has no experience in 

running a police department or being a police officer, and attempting to do 
In re Recall of Jenny Durkan, No. 98897-8

20

so for the first time during an ongoing crisis seems unreasonable. Chief 

Best, on the other hand, has considerable experience, and declining to 

remove and replace her during this crisis does not seem manifestly 

unreasonable. Moreover, Chief Best has since resigned and been replaced, 

but the recall petitioners assert that police abuses continue, indicating that 

replacing the chief would not have solved the problem. 

Second, the recall petitioners assert that Mayor Durkan “could have 

issued unambiguous orders to the Chief to ensure that when police used 

these weapons, they complied with the federal TRO, and only used them in 

positions involving ‘life safety,’ because the SPD has manifestly not been 

using them in that manner.” Resp. Br. & Opening Br. of Cross-Appellant at 

21 (referring to SEATTLE CITY CHARTER, art. V, § 2). However, in her 

executive order closing Cal Anderson Park on July 1, 2020, Mayor Durkan 

did clearly order that SPD comply with the TRO.3

 Compliance with the 

TRO was, of course, never optional, and if one order to comply from Mayor 

Durkan did not work, it is not manifestly unreasonable to think that another 

order to comply would not have resolved the situation.

 3 Executive Order 2020-08 (June 30, 2020), at 4, 

http://clerk.seattle.gov/~CFS/CF_321741.pdf [https://perma.cc/Q29H-HZ9C]. 
In re Recall of Jenny Durkan, No. 98897-8

21

Third, the recall petitioners assert that Mayor Durkan could have 

ordered “mediation between the parties.” Resp. Br. & Opening Br. of CrossAppellant at 22. However, the record indicates that in many, if not most or 

all, instances, the individuals who “assaulted officers, set fire to police and 

citizen vehicles, smashed windows of and looted numerous businesses 

throughout the downtown core, and otherwise caused extensive mayhem and 

property damage” were not the protesters at all but, instead, “appeared to be 

unaffiliated with the peaceful march.” 1 CP at 69. It is not manifestly 

unreasonable to believe that attempting to involve such people in mediation 

would be ineffective.

It is certainly possible to imagine other actions Mayor Durkan might 

have taken, perhaps issuing a moratorium on the use of tear gas and pepper 

spray altogether. Mayor Durkan asserts she could not have done any such 

thing because the Consent Decree “requires that policies relating to the use 

of crowd control tools be submitted to the Monitor, the DOJ, and the federal 

court for approval prior to implementation.” Br. of Appellant at 31. This 

assertion is supported by the federal district court’s issuance of a TRO in the 

Consent Decree case, and we agree that the Mayor could not have changed 

the policies without approval of the federal court. However, even if we 

assume that Mayor Durkan could have issued a temporary moratorium, 
In re Recall of Jenny Durkan, No. 98897-8

22

allowing the continued use of pepper spray and tear gas in life-threatening 

situations, and with the prior authorization of the police chief in accordance 

with the TRO, is not manifestly unreasonable.

2. Our precedent does not support allowing a recall charge to go 

forward on the basis that Mayor Durkan failed to take further 

actions that have not been specified

The recall petitioners also contend that Mayor Durkan manifestly 

abused her discretion by failing to do “something entirely unimagined 

herein.” Resp. Br. & Opening Br. of Cross-Appellant at 22. The recall 

petitioners’ claim that Mayor Durkan’s actions were not good enough,

without specifying any actions that were manifestly unreasonable not to 

take, is insufficient to support a recall election. The petitioners do not cite 

any case allowing recall charges to go forward on such a basis. The petition 

is factually insufficient “because it does not state any specific facts regarding 

how [Mayor Durkan] deficiently performed [her] duties.” In re Recall of 

Kelley, 185 Wn.2d 158, 169, 369 P.3d 494 (2016) (emphasis added).

Certainly, had Mayor Durkan refused to act at all, “simply turning a 

blind eye,” such a complete failure to act might be sufficient to support a 

recall election. Reply Br. of Cross-Appellant at 1. See In re Recall of 

Riddle, 189 Wn.2d 565, 575, 403 P.3d 849 (2017). However, Mayor Durkan 
In re Recall of Jenny Durkan, No. 98897-8

23

did not completely fail to act. She sought expert input regarding SPD’s 

crowd control policies on June 5, she consistently expressed her support for 

the protesters’ constitutional rights and the limitations placed on the use of 

tear gas, and she ordered SPD to comply with the TRO. Though the

petitioners are dissatisfied with Mayor Durkan’s official actions, they have 

not demonstrated an adequate basis for recall. 

CONCLUSION

If the alarming factual allegations in this case are true, as we must

assume they are, then those responsible must be held accountable, including

Mayor Durkan. However, our precedent does not allow Mayor Durkan to be 

held accountable on these charges through the process of a recall election. 

We reverse as to Charge B, affirm as to Charges C and E, and remand with 

instructions to dismiss the recall petition. 
In re Recall of Jenny Durkan, No. 98897-8 

WE CONCUR:

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